The liberalisation of licensing and gambling laws come into force this November and will inevitably impact on the workplace as employees are lured to stay out longer and party harder; Ruth Hickling, Head of Employment at Stringer Saul LLP looks at the issues.

Alcohol abuse/addiction
The misuse of alcohol before, during and after work is an increasing problem in the workplace. It is estimated that in the UK one in five accidents and over 50% of fatal accidents at work are alcohol related. Any alcohol can result in a lack of coordination, slower reaction times and impaired judgement. Employees who have to drive, use machinery, electrical equipment or ladders are particularly vulnerable.

Excess alcohol often results in bad behaviour which can be disruptive and in some cases lead to misconduct including violence. A common concern is the adverse effect this can have on company image and customer relations.

It is estimated that eight million working days are lost through sickness absence due to alcohol and hangovers. Absenteeism and lateness are disruptive and adversely affect performance. It is well known that alcohol reduces the ability to concentrate, impairs skills, reduces the quality of work and affects motivation, judgement and decision making. Inappropriate behaviour and alcohol related absence can affect morale and cause resentment from colleagues who are forced to provide cover.

The primary issue for employers in relation to alcohol abuse is usually health and safety. Employers have a well established duty of care both at common law and by statute (under the Health and Safety at Work Act etc 1974) to ensure the health and safety and welfare at work of their employees.

Employers are also required to assess the risks to the health and safety of their workers. Accordingly an employer who allows a person under the influence of drink to continue working could be in breach of its duty of care by putting other workers or the general public at risk.

Alcohol dependency is a well-recognised illness although it is specifically excluded from being a disability for the purposes of the Disability Discrimination Act 1995.

However, employers should bear in mind that impairments resulting from addictions (for example liver damage caused by alcohol dependency) can amount to a disability under the Disability Discrimination Act.

Employers should therefore be cautious and where appropriate obtain medical advice to determine whether an employee is disabled before deciding on action to be taken.

The Disability Discrimination Act imposes obligations on employers not to victimise or discriminate against employees with a disability and to make reasonable adjustments so that a disabled person is not at a disadvantage in comparison with non disabled people.

Issues which employers face in relation to alcohol usually fall into two categories:

• A one off incident, usually of misconduct, which involves over indulgence in alcohol by an employee who is not alcohol dependent. Usually such incidents are treated as a disciplinary (or dismissal) issue depending on all the circumstances. Employers should ensure that their disciplinary and dismissal procedures comply with all statutory requirements and that there is sufficient consultation with the employee to ascertain that the issue is not one of alcohol dependency and that it does not involve an underlying disability.
• Alcohol dependency of an employee should be recognised as an illness and any disciplinary or dismissals should be dealt with as an issue of incapability under the disciplinary and dismissal procedures. This will involve an escalating series of at least three warnings to the employee of the problem and the timeframe for the improvement that is expected. The process will usually involve a medical report which should ascertain that there is no underlying disability. If possible, the employer should offer counselling, time off work and/or other rehabilitation support as part of the improvement process.

To assess whether alcohol is harming the business, an employer should regularly review the information it holds on sickness absence, productivity, accident records and disciplinary problems.

Each business is different so an employer should consider in relation to his business if, and if so when, it is acceptable for employees to drink alcohol, any legal or other regular rules which must be complied with, and how the employer proposes to deal with employees whose work is suffering due to alcohol or who attends for work when he is drunk.

Having considered such issues, employers should put in place an alcohol policy and then ensure that it is applied fairly and consistently. It should be borne in mind that employees with alcohol problems or dependency have the same rights to confidentiality and support as employees with other medical or psychological conditions. Employees should be encouraged to seek assistance from their GP or a rehabilitation specialist.

Disciplinary action and dismissal should be seen as a last resort. An employment tribunal may find a dismissal unfair if an employer has made no attempt to help an employee whose work problems are related to alcohol dependency.

Gambling addiction
Like alcohol dependency, gambling addiction is an illness. Sufferers often experience depression, anxiety, muscular tension, fatigue, headaches and high blood pressure. Their concentration is often affected as they are preoccupied with the next bet or worrying about financial problems. Workers with addictions to gambling may be harder to detect as their symptoms are not so obvious.

Issues most likely to arise in connection with gambling are disciplinary issues of conduct or performance (for example, persistent lateness, absenteeism or poor performance) and misconduct (such as theft). As with alcohol dependency, employers should treat gambling addiction as an illness and if possible offer treatment, support and counselling in the context of an improvement plan under the incapability part of an employer’s disciplinary and dismissal policy. Again, gambling addiction is not a disability for the purposes of the Disability Discrimination Act.

As far as policies are concerned, it is more difficult to frame a policy which is directly relevant for gambling. Employers could include a specific prohibition on online gambling in their email/internet policies and/or make clear the extent of personal internet use which is considered appropriate.

They could also make clear in any support/counselling services provided that they consider gambling addiction to be an illness for which support and counselling will be provided in confidence. Where appropriate, managers should be given training in identifying and dealing sensitively and effectively with addiction problems.

The next few years will tell whether these legislative changes do bring further problems for employers whose employees are susceptible to addiction to alcohol or gambling. In any event, employers should ensure that they have appropriate policies and procedures in place so both workers and managers are aware of what is expected of them before the temptations of 24 hour drinking start in November.